Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action:

First. That defendant is the owner of a certain lot of land situate in the village of West Troy, Albany county, lying, &c. [describing it generally.]

Second. That the plaintiff is extensively engaged in the business of buying and selling lumber, and is in the actual occupation of premises in said village, for the purposes of his said business, adjoining those above described of the said. defendant; holding the same under a lease from one A. B., for the term of — years, which term expires on the day of — next.

Third. That being unable to effect a further lease of said premises, and being desirous to continue his said business, the plaintiff made an agreement with said defendant whereby said defendant agreed that on the day of — next, on the payment to him by plaintiff of the bonus of $4 , he would execute and deliver to said plaintiff a lease of the above described premises of defendant, for the full term of ten years, for the yearly rent of $- payable quarterly.

Fourth. That a contract in writing, intended by both parties to express said agreement, was thereupon executed and delivered by said defendant to said plaintiff, a copy whereof is annexed to this complaint.

Fifth. That said plaintiff soon after paid said defendant the said bonus of $m , which was endorsed by defendant upon said contract, and that plaintiff thereupon made arrangements to remove his lumber and stock on hand upon defendant's premises, so contracted to be leased, and has actually removed a considerable part thereof.

in this State by Chancellor Kent, in Gillespie v. Moon (2 John Ch. R., 585), rejecting the distinctions taken in the earlier English cases, as unfounded in justice, he decreed relief to a plaintiff in this form, and this decision has since been generally acquiesced in. See, also, Kisselbrach v. Livingston (4 John. Ch. R., 144; Story Eq. Juris., $ 161, and full collection of English cases cited in note.)

Sixth. That by the mistake of the clerk, in engrossing the said written contract before its signature, the words "ten years” were written “two years,” so that by the letter of said contract, the said defendant, contrary to the agreement and understanding of both parties at the time of the execution thereof, agreed to lease said premises to said plaintiff for the term of two years only, in stead of ten years, and said mistake was not discovered by, and was unknown to, plaintiff at the time he executed said contract and paid said bonus, and for a considerable period since.

Seventh. That on the day of the day mentioned for the execution of said lease), the plaintiff called upon the said defendant in person, and requested him to execute and deliver to him a lease of said premises for the full term of ten years, in all other respects according to said written contract; but said defendant refused to execute and deliver to said plaintiff a lease for such full term, or for any other term, except two years, the term mentioned by mistake in such written contract, which he, the said plaintiff, declined to receive.

Wherefore the plaintiff demands judgment against the defendant, that the said written contract or agreement may be re-formed and corrected according to the original true intent and understanding of the parties, thereto, by inserting therein the words “for the full term of ten years," instead of the words “ for the full term of two years;" and that said contract, so re-formed, may be specifically enforced against said defendant, and he be adjudged to perform the same by executing and delivering, in due form

of law, to plaintiff a lease of his said above-described premises, according to the terms of said contract, so corrected, for the full term of ten years, from the - day of

- , and deliver to said plaintiff the said premises, and every part thereof, and leave him in undisturbed possession of the same; or for such further, &c. (as in No. 1.]

(2.) IN CASES OF ACCIDENT.

(No. 3.)

By administrators against next of kin, to compel reimbursement of moneys accidentally distributed, which had been collected by the administrator, on a judgment which was subsequently reversed. Complaint stated by paragraphs.?

Title of the Cause.

The plaintiffs, complaining of the defendant, allege the following facts constituting their cause of action.

First. That A. D., late of the town of Kinderhook, county of Columbia, died on or about the, &c., intestate, leaving no widow, and leaving the defendants, his children, who constitute all his next of kin; and that the plaintiffs were, on the, &c., duly appointed by the surrogate of Columbia county, administrators, &c., of said A. D., deceased.

Second. That on the, &c., the said plaintiffs, as administrators, &c., of said A. D., deceased, recovered a judgment

1 Story Eq. Juris., § 91.

2 This and the two preceding forms are stated in a similar manner, with No. 6, ante, by separate numbered paragraphs or articles. The pleader can adopt this mode in all cases, if he prefer. In the precedents which follow, I shall adopt the more usual mode of statement.

in the Supreme Court, against one B. G., for the sum of $4,150, damages and costs, and soon after collected the amount thereof, on execution issued upon said judgment.

Third. That on or about the, &c., the said plaintiffs, administrators, &c., as aforesaid, rendered their final account to the surrogate of Columbia county, and on the order and decree of said surrogate, thereupon made, paid over to said defendants, in equal proportions, the amount remaining in the hands of said plaintiffs, administrators, &c., for distribution among the next of kin of said intestate, to wit: the sum of $9,275, which included the said sum of $4,150, so collected by them on said execution as aforesaid.

Fourth. That subsequently to the rendering of said account, and the distribution of said money, the said B. G. appealed from said judgment to the general term of the Supreme Court, and such proceedings were thereupon had, that said judgment was reversed and a new trial granted.

Fifth. That the action was again brought to trial on behalf of said plaintiffs, by their attorney, and, upon such new trial, a verdict was rendered for the defendant, and judgment has been entered in his favor thereon.

Sixth. That said plaintiffs have, in consequence thereof, been compelled to refund and pay back to said B. G., the said sum of $4,150, with interest thereon, from the time of the rendition of said judgment, and said plaintiffs have also incurred costs and counsel fees on said appeal and new trial, in the sum of $250, which they have paid, on or about the day of —

Whereupon the plaintiffs demand judgment against the defendants, that they may be compelled respectively to account with the plaintiffs for the sums of money so distributed to them, with interest thereon, from the time of the rendition of said judgment; and account in the same manner, also, in respect to the above costs and counsel fees, so incurred and paid by said plaintiffs, and may each be adjudged respectively to pay to the said plaintiffs, administrators, &c., his share or proportion of said amount so distributed, and costs and counsel fees, and interest thereon. Or for such further, &c., [as in No. 1.]

(No. 4.)

For the execution of a trust, where the trustee has died, and,

by accident or neglect, has omitted to execute that trust.

SUPREME COURT- RENSSELAER COUNTY.

A. D., C. D., and E. F.,

agt.
L M., N. M., and 0. M.

The plaintiffs complain of the defendants, and allege the following facts, constituting their cause of action :

That the plaintiffs, A. D. and C. D., are the children and only heirs at law of F. D., deceased, and the plaintiff E. F. is the nephew of said F. D. And that the above named defendants are children and all the heirs at law of P. M., deceased.

That said P. M., late of the town of — , died on or about the day of — , leaving a last will and testament, which has been duly admitted to probate by the surrogate of Rensselaer county, as a will of both real and personal estate, wherein he devised to said F. D.,

Story Eq. Pl., § 98.

« ΠροηγούμενηΣυνέχεια »